Inchoate crimes, or incomplete crimes, form a separate branch of criminal law. A complete offense is a criminal offense that has been fully executed. For example, if someone kills another person, the former has committed the completed criminal offense of murder. Alternatively, suppose an individual shoots another, but the latter was saved by the paramedics. The shooter cannot be charged with murder because the victim did not die. However, they can be charged with the inchoate crime of attempted murder because they did attempt to kill another person. There are three types of inchoate offenses: attempt, conspiracy, and solicitation.
Generally, at common law, these offenses were viewed as minor offenses. However, the modern approach is that these offenses are now felonies. A person cannot be prosecuted for committing both the completed act (i.e., murder) and the inchoate offense (i.e., attempted murder). The exception to this rule is conspiracy. A person can be charged with both conspiracy (i.e., conspiracy to commit murder) and the completed crime (i.e., murder).
The reason inchoate crimes are punished is deterrence. If a person is unable to commit a crime, they will not hesitate to try again when the situation presents itself. Suffering no criminal liability for attempting, conspiring, or soliciting a crime would embolden someone to try again. By imposing criminal penalties on inchoate crimes, criminals will be deterred from committing crimes because even if they do not complete the act, they can still be criminally liable for the inchoate offenses.
An attempt to commit a crime is when a person makes certain steps to commit a certain criminal act but does not complete the act. Generally, the crime of attempt consists of the following elements:
Regarding the first element, intent must be the specific intent to commit the crime. For example, to be charged with attempted murder, the specific intent to kill must be proven. One can never be charged for criminal acts where the mens rea for the crime is negligence or recklessness, as one cannot have a specific intent to commit a negligent or reckless act.
For the second element, the “substantial step” towards the completion of the crime must be more than preparation to commit the crime. The person must have engaged in some action that makes it highly likely that they would complete the crime. For example, suppose an individual buys matches and kerosene. They spill the kerosene over a car and then light a match. The individual then throws the match at the car, but misses the car, and it lands in a puddle next to the car. That is enough for attempted arson because the individual was substantially close towards the completion of the crime of arson, were it not for his bad throw. However, the purchase of the matches and kerosine is not enough to be charged with attempted arson, as after purchasing such materials the individual was not “substantially close” to the crime’s completion. That would only entail preparation.
There are several defenses for a charge of attempt. Some jurisdictions allow for the defense of abandonment. If a person can prove that they voluntarily ceased to further their completion of the offense and did abandon such an act, then they can successfully provide a defense to the crime of attempt. However, the voluntariness cannot stem from the inability to complete the crime, such as completion of the crime being more difficult, or because they got too nervous. For example, in the arson example, if the individual instead did not light the match because they saw a police car patrolling the area, they cannot use abandonment as a defense because the abandonment stemmed from fear of the police. If one can prove the elements of the abandonment offense, the policy for allowing this defense is that society does not want individuals to commit crimes. Thus, if they cease to do so due to a change in heart and recognition of the illegality of the act, then it would not make sense to still punish them. If one could still be punished after abandonment, then there would be no incentive for people who are about to commit a crime to abandon the criminal activity.
Another defense to attempt is legal impossibility. This is an exceedingly rare defense. Basically, if the person, after having completed the act, legally committed no crime, then they cannot be charged with attempt. For example, suppose an individual, who was nineteen, drank alcohol in Country A where they thought the legal age of drinking was twenty-one years old. The drinking age in Country A is eighteen years old. Thus, though the individual had the intent to drink underage and indeed did complete the act, they cannot be charged for underage drinking because they were of the legal drinking age. Thus, committed no crime. Had a police officer stopped them for some reason right before they took a drink, they could not be charged with attempt either. Because there is no law prohibiting a nineteen-year-old from drinking alcohol, the individual cannot be charged with attempting to do so.
On the other hand, another type of impossibility is factual impossibility. This is not a defense to attempt. In this instance, if a person is unable to commit the crime due to some unknown condition, they can still be charged with attempt. For example, suppose an individual steals a gun and tries to shoot another person. They exhibit intent to shoot and kill the latter, and thus pulls the trigger. Unknown to the shooter, there were no bullets in the gun. The shooter can still be charged with attempted murder. It is not a defense that there were no bullets in the gun and therefore they never could have killed someone.
A conspiracy is an agreement between at least two people to commit an illegal act. The elements are a conspiracy are the following:
For the first element, there must be at least two persons who form an agreement together. One cannot be charged with conspiracy if they had no cohorts. These persons must join voluntarily with the intent to engage in some illegal activity. The agreement does not have to be expressed. Existence of such an agreement can be proven by a certain set of actions executed over time that shows that the participants were acting with the intent to carry out a certain objective. Originally, at common law, the objective of the agreement only had to be unlawful, which included noncriminal matters. However, most jurisdictions now require that the objective of the agreement be a crime or that the agreement’s objective be carried out in a manner that is criminal.
Sometimes, several crimes are committed over time by the same conspirator or conspirators. They can either be separate conspiracies or they can be treated as one large conspiracy. A chain conspiracy is one conspiracy. All smaller agreements are viewed as a whole, existing to further one large conspiracy. For example, suppose an individual steals television sets and then gives them to a seller who then peddles the television sets to various buyers. These buyers then sell these TVs on the street. This is one large conspiracy of selling stolen television sets. Alternatively, a wheel conspiracy (or sometimes called a “hub-and-spoke conspiracy”) is where one individual or one group enters into agreement with various individuals or other groups. All the agreements originate with that first individual/group. That first individual/group is involved in all of the conspiracies. However, the other various individuals/groups are only involved in their own conspiracy with the main individual/group. For example, suppose an individual agreed to be the seller for three separate dealers for their various drug operations. The three dealers were not affiliated with each other and neither had an interest in the other’s drug operation. Thus, the individual (the center of the wheel/hub) had a separate conspiracy with each of the three dealers (the wheel/spikes). These three conspiracies exist independent of each other.
Further, there must be a criminal intent both to enter into an agreement and to conduct the objective of the agreement. The intent to form an agreement is usually implied from the agreement itself or the acts of the parties involved. Intent to achieve the agreement’s objective is viewed from the perspective of each of the conspirators.
Lastly, most jurisdictions require that an overt act be executed to achieve the purpose of the agreement. Any act in furtherance of the conspiracy meets this test. Preparation to achieve the objective of the agreement would meet this test. For example, two individuals agree to burglarize a house. Together they purchase dark clothes, a crowbar, and masks. They further found blueprints to his house. The purchasing of the clothes and tools and looking at the blueprints are preparation to burglarize the house. Thus, the overt act of the conspiracy is met. Most jurisdictions require this overact act in furtherance of the agreement. The United States Supreme Court has held that this is a statutory requirement, not one required by the U.S. Constitution. [Whitfield v. United States, 453 U.S. 209 (2005)]
Again, a person can be convicted of both the completed act and conspiracy to commit that act. Sometimes, the punishment for conspiracy can be more than the punishment for the actual crime. A person can also be liable for the crimes committed by their co-conspirators. This occurs when the crimes committed were in furtherance of the agreement’s objective and that the new crimes were foreseeable. For example, suppose three individuals conspire to break into a bank at night and steal the money in the vault. One of the conspirators on their own robs a teller to get their access pass into the bank. The other two conspirators would be liable for the robbery as it was in furtherance of the agreement and it was foreseeable that they would need to gain access to the bank somehow. This is called the Pinkerton Rule, as established by the Supreme Court of the United States. [Pinkerton v. United States, 328 U.S. 640 (1946)]
As with attempt, factual impossibility is not a defense to a conspiracy. If two individuals conspire to kill someone, only to find that the person was already dead, there can still be a conspiracy even though the objective of the agreement (to kill the person) could never have occurred because they were already dead. Similarly, one cannot (generally) withdraw from a conspiracy. The reason both are not defenses is that once the elements of a conspiracy have been met, the conspiracy is already completed. However, some jurisdictions do allow for withdrawal of a conspiracy. That withdrawal must involve informing the authorities and stopping the other conspirator(s) from completing the conspiracy’s objective. If one does withdraw from a conspiracy and informs all their co-conspirators, then their liability for the conspiracy would cease once they gave the notice of withdrawal. Another defense would be to argue that one did not know that the other conspirators planned to commit a crime. Talking about committing a crime is not the same as agreeing to commit a crime. If one can prove that they did not believe the agreement was real, they can provide a defense to the conspiracy charge by defeating the element of the intent to enter into an agreement to further a criminal objective.
Solicitation includes advising or commanding someone to commit a crime. The elements of such a crime are the following:
The actual crime need not be committed for one to be charged with solicitation. The crime of solicitation is complete upon the asking of someone else to commit a crime with the intent that the latter person commit the crime. The demand or advice that someone commits the crime could be either in person or via some media, like an email. If the person soliciting the crime communicated the information to another in some form, then the first element is met. Secondly, the person who solicited the crime must intend for the other person (or persons) to commit the act. The intent of the person being solicited is of no consequence. Solicitation punishment varies depending on what the solicitation was for.
For example, if an individual advises another to steal their manager’s wallet and fully intends for the latter to do it, then the individual has solicited the latter into stealing. It does not matter if the one who is solicited commits the act or not. The solicitor met the elements of solicitation. Conversely, if the individual jokingly tells the other to steal their manager’s wallet, and the latter does so, the former individual would not be guilty of solicitation. Here, although the individual told the other to commit the criminal act, they did not do so with the intent that the latter person follows through with the act. They were only joking. Therefore, the intent element is not met.
Just as with attempt and conspiracy, factual impossibility is not a defense to solicitation. It does not matter if the crime could not have been committed. Further, abandonment or withdrawal of the solicitation is not a defense, usually. This is because once the person already solicits another to commit a crime, the act of solicitation is completed. Any withdrawal of that solicitation is moot because the act already happened. There are some jurisdictions who do permit withdrawal as a defense of solicitation if the person changes intentions and communicates the new request to the person they solicited to commit the crime. This can also involve notifying authorities of the original solicitation.
Federal Inchoate Crimes
Inchoate crimes are heavily part of state law, as much of criminal law is state law. However, there are several federal statutes that cover inchoate crimes. The most common is 18 U.S. Code § 371. Under this statute, it is a crime to conspire to “commit any offense against the United States, or to defraud the United States.” The Supreme Court has held that this section applies to “any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government." [Tanner v. United States, 483 U.S. 107, 128 (1987)] Another similar federal statute is 18 U.S. Code § 1956, which covers conspiracy to commit money laundering. Federal statute 18 U.S. Code § 373 covers solicitation to commit a crime of violence. Similarly, the federal arson statute covers both conspiracies and attempts to commit arson within the territorial or maritime jurisdiction of the federal government. The statute covers anyone who “within the special maritime and territorial jurisdiction of the United States, willfully and maliciously sets fire to or burns any building, structure or vessel . . . or attempts or conspires to do such an act”. [18 U.S. Code § 81] Similarly, 18 U.S. Code § 1113 covers attempted murder. Generally, where the federal government criminalizes an act, they have some legislation criminalizing the corresponding inchoate crimes. Thus, it is always important that one’s lawyer be familiar with both federal and state laws that may apply to their client’s case.
Inchoate offenses are crimes that were not completed. Attempt, conspiracy, and solicitation are the three types of inchoate crimes. Attempt laws punish individuals who intended to commit an illegal and were substantially close to completing that act. Solicitation laws punish individuals who advise others to commit a crime with the intent that the crime be committed. Conspiracy laws punish the “meeting of the minds” of two or more persons agreeing to commit a criminal act. Penalties for these inchoate crimes exist so criminals are still held accountable for their intentions to commit a crime, even if the crime was never completed.